The Legal Intelligencer Blog

Judicial 'Merit Selection' Gets Renewed Push by Four Ex-Governors

By Amaris Elliott-Engel
Of the Legal Staff

A bill that would give Pennsylvania voters the opportunity to decide whether to amend the state constitutional process for electing appellate court judges has a better chance of advancing than it has in the past, former Governor Ed Rendell said Monday. There is a better chance, he said in a conference call with reporters, because Rendell and three other former governors have come out in favor of the legislation and because Supreme Court Justice Joan Orie Melvin’s political corruption conviction has again pointed out the dangers of having judicial candidates campaign for office.

Rendell, a former Democratic governor; Tom Ridge, a former Republican governor; Dick Thornburgh, a former Republican governor; and George Leader, a former Democratic governor, wrote a letter to every member of the General Assembly in favor of a proposed bill that would set up a bipartisan commission that would select five candidates for every appellate-court vacancy to create a shortlist from which the governor would have to make an appointment. All those appointees would be subject to retention elections by voters, and trial-court judges would still be elected directly. The bill would have to be passed by the General Assembly two times before going to a referendum before voters.

Some of the problems with electing judges are that there are great amounts of money raised in appellate-court races, raising the possibility of “potential deference owed to donors,” Thornburgh said.

The genius of the framers of American government was that the judiciary was to be a body independent of people’s opinions, Ridge said. “It’s about … experience and temperament and the rule of law and upholding the constitution and not public opinion,” Ridge said.

Thornburgh cited a quote by Woodrow Wilson that he “would rather lose in a cause that will some day win, than win in a cause that will some day lose,” to explain why he continues to push for a change in how judges are selected.

The bill was introduced in the Senate by state Senator Anthony Williams, D-Philadelphia, and state Senator Richard Alloway, R-Adams, and Representative Bryan Cutler, R-Lancaster, is circulating the bill for co-sponsors, said Lynn Marks of Pennsylvanians for Modern Courts.

Amaris Elliott-Engel can be contacted at 215-557-2354 or [email protected]. Follow her on Twitter @AmarisTLI.

It's Official: Phila. Off Tort Reform's 'Judicial Hellholes' List

By Amaris Elliott-Engel
Of the Legal Staff

After two years, the American Tort Reform Association, a conservative group that aims to change tort law, took Philadelphia off its "judicial hellholes list" and placed it on its "watch list."

The Legal reported earlier this year that ATRA was planning to have Philadelphia come off its judicial hellholes" list as the Court of Common Pleas sees a dramatic drop in mass tort filings and the administrative judge of the trial division has repeatedly said out-of-state plaintiffs should file their suits elsewhere.

One of the group's main complaints was that the Complex Litigation Center's mass torts program "had become a magnet jurisdiction for lawsuits from across the country." The report was favorable to several changes, implemented in part by Judge John W. Herron, administrative judge of the trial division, such as eliminating reverse bifurcation and limiting consolidation of mass tort cases to asbestos cases.

The group said "while it comes with many caveats and a pledge to keep the white-hot Judicial Hellholes spotlight firmly fixed on the jurisdiction for as long as necessary to prevent back-sliding, it is in the spirit of giving credit where credit is due that this year's report appropriately eases Philadelphia out of the Hellholes rankings and onto the Watch List."

But the group argued that changes to Pennsylvania's venue rules should be applied to personal injury cases as they were applied a decade ago in medical malpractice cases.

More on Phila. Defenders Withdrawing From Courtrooms

By Amaris Elliott-Engel
Of the Legal Staff

No last-minute budget deal was worked out over the weekend to prevent the Defender Association of Philadelphia from withdrawing from some Municipal Court courtrooms because the association says it has not received enough funding from the city of Philadelphia for the fiscal year starting this week.

Charles Cunningham, first assistant defender for the Defender Association of Philadelphia, confirmed that the association had withdrawn from multiple courtrooms. In one courtroom The Legal spot-checked between 11:30 a.m. and 12 p.m. today, several cases were rescheduled because an assistant defender was not staffing the courtroom and private counsel still needed to be appointed. Domestic-violence cases are scheduled in Courtroom 906.

Philadelphia Municipal Court Judge Harvey W. Robbins stated regarding the status of five cases: “Private attorney appointed; commonwealth witnesses called off; bring-down canceled.”

During The Legal’s visit, two cases with private counsel were withdrawn and one case with a court-appointed private attorney resulted in a guilty plea.

Mayor Michael A. Nutter’s administration issued this statement regarding the funding for the Defender Association: “The city is in communications with the defenders and will continue to work to address the current and long-standing issues that they have raised. We will work to resolve these differences within the fiscal realities of the city.”

You can read the original story here.

Amaris Elliott-Engel can be contacted at 215-557-2354 or [email protected]. Follow her on Twitter @AmarisTLI.

Seven New Judges Confirmed Amid Budget Battle

By Amaris Elliott-Engel
Of the Legal Staff

Amid the flurry of activity over the state budget last weekend, the state Senate confirmed seven new judges.

The confirmations were the subject of some controversy because Pennsylvania Chief Justice Ronald D. Castille had said he had requested a moratorium on filling judicial vacancies as a means of controlling the court’s budget, while Governor Tom Corbett said he had agreed to the moratorium for one year only.

The court’s budget was increased in order to pay for the judgeships.

The general-fund provision for the judiciary was increased by $8.2 million, but the judiciary had said that it probably needed closer to $10 million. While an overall increase of $9.3 million was approved, $1.1 million of that amount is for an Allegheny County court consolidation grant.

The new judges include: Paul E. Cozza and William F. Ward for the Allegheny County Court of Common Pleas, Roger F. Gordon and Kenneth J. Powell Jr. for the Philadelphia Court of Common Pleas, J. Scott O’Keefe and T. Francis Shields for Philadelphia Municipal Court, and Michael W. Flannelly for the York County Court of Common Pleas.

Until a recent reshuffle in the Corbett administration, Ward was Corbett’s chief of staff.

The judiciary has argued over the last few budget cycles that it is not receiving enough general-fund dollars to pay for judgeships and other costs and that it has been using technology-dedicated funds to cover the shortfall.

Amaris Elliott-Engel can be contacted at 215-557-2354 or [email protected]. Follow her on Twitter @AmarisTLI.

Two Named to Fill Vacancies on U.S. Middle District Court

By Saranac Hale Spencer
Of the Legal Staff

President Obama has nominated Matthew Brann and Malachy Mannion for the two vacant seats on the bench in the Middle District of Pennsylvania.

Brann, a partner at Brann Williams Caldwell & Sheetz in Bradford County, is a former chairman of the county’s Republican committee and is a graduate of Penn State’s Dickinson School of Law.

Mannion has been a magistrate judge in the Middle District since 2001 and, before that, was an assistant U.S. attorney there. For four years, he was in private practice as a principal at Hourigan, Kluger, Spohrer & Quinn in Scranton.

"Malachy Mannion has served the public as a U.S. attorney and as a federal magistrate judge, and I will push for a speedy confirmation process in the Senate. I have known Mal for years and he is an excellent lawyer whose integrity is beyond reproach," Senator Robert P. Casey Jr., D-Pa., said in a press release. "Matthew Brann, along with an impressive career in private practice, has demonstrated a commitment to the community that will make him an outstanding judge.”

"On a bipartisan basis, I have been working closely with Sen. Casey on judicial nominations for our state to help confirm qualified, experienced individuals with unquestioned honesty and integrity. I am confident that these two nominees will live up to these standards and hope that the Senate confirms them in a timely manner," Senator Pat Toomey, R-Pa., said in a press release.

The seats became open upon A. Richard Caputo’s retirement in 2009, and Thomas Vanaskie’s elevation to the U.S. Court of Appeals for the Third Circuit in 2010.

The reinforcements, if confirmed, would restore the Middle District bench to full strength.

“We try not to dwell on it,” Yvette Kane, chief judge in the Middle District, said earlier this week of the four active judges who have been saddled with heavy caseloads in absence of a full complement on the bench.

The national average number of days from the announcement of a vacancy to the nomination to fill it is 399, according to Russell Wheeler, of the Brookings Institute. Wheeler has published several studies on the judicial nomination process and its politics.

No Contempts for First 2 Weeks of New Fugitive Court

By Amaris Elliott-Engel
Of the Legal Staff

Court leaders have agreed that any defendants voluntarily surrendering on bench warrants won’t face contempt proceedings for the first two weeks of the First Judicial District’s new bench warrant court starting Monday, defense attorney Michael J. Engle said today.

Engle said he was one of many people meeting with state Supreme Court Justice Seamus P. McCaffery on the new court Thursday.

Engle said that the Pennsylvania Association of Criminal Defense Lawyers and other members of the defense bar were unsuccessful in getting the court to delay the start of the court by two weeks, but court leaders did agree to phase in contempt proceedings for defendants who voluntarily surrender.

However, defendants picked up involuntarily will face potentially contempt trials immediately, Engle said.

The FJD is starting a dedicated courtroom to hold contempt proceedings and bench warrant hearings for defendants who have failed to appear for prior court dates. Philadelphia Municipal Judge Joseph C. Waters Jr. will preside.

About 40 to 45 attorneys attended a training convened by the PACDL, the Philadelphia Bar Association’s criminal justice section and the Defender Association of Philadelphia, Engle said.

There are close to 100 attorneys who have agreed to take court appointments to handle the lists of fugitives in the court.

As the system is set up right now, there is no way to do a conflict check, Engle said.

The plan is to have lists of cases called at 9:30 a.m., 11:30 a.m. and 1:30 p.m., Engle said.

The afternoon list is supposed to involve the defendants in custody, Engle said. Court leaders have expressed an interest in having the bench warrant hearings held over video-link between the Philadelphia Prison System and the Criminal Justice Center, Engle said.

The defense community has raised the issue that mandating video appearances for defendants in custody “infringes upon the defense constitutional rights,” Engle said. “It makes it impossible for defense attorneys to meet with and adequately consult with the client.”

One idea to address that problem is to have the defense attorney go up to the prison in the morning and meet with the defendants in preparation for the afternoon list, Engle said.

But if the case proceeds into a contempt trial, the question has not been resolved if the lawyer should stay up at the prison and be there in person with his or her client or if the lawyer should be in the courtroom where the evidence is, Engle said.

Liberal Group Defends Phila. Courts in Report

By Amaris Elliott-Engel
Of the Legal Staff

In the wake of criticism of the Philadelphia civil court system from defense-minded and conservative quarters, Keystone Progress, a Pennsylvania liberal advocacy group, said in a report today that the First Judicial District “has an appropriate number of cases relative to its size, but it handles them quickly and efficiently with no apparent favoritism towards plaintiffs.”

The report was written by David Ward and Michael Morrill of Keystone Progress.

For two years in a row, Philadelphia was called a “judicial hellhole” by a conservative judicial watchdog, the American Tort Reform Foundation. ATRA said that reverse-bifurcation in asbestos trials put defendants in a quandary because juries were focusing on the plaintiffs’ injuries before focusing on whether the defendants could have caused the alleged injuries and that the First Judicial District was the site of “forum shopping.” ATRA said it was mulling the removal of Philadelphia from its “hellhole” list because of an order issued by Philadelphia Common Pleas Court Judge John W. Herron, administrative judge of the trial division.

The order asked that lawyers for out-of-state asbestos plaintiffs file their cases in other forums in order to allow the FJD to get its asbestos case inventory back into compliance with American Bar Association standards. The order also ended reverse-bifurcation in all asbestos cases, limited pro hoc vice counsel to trying two cases a year in Philadelphia, and barred punitive damages for all mass tort cases – at least on a foreseeable basis.

Keystone Progress criticized ATRA’s report.

“Though recent reports have attempted to frame Philadelphia courts as extreme, they are actually well within the bell curve for total civil caseload in respect to population when compared to other counties,” the Keystone Progress report said.

Philadelphia dropped 40 percent in the median amounts awarded in tort trials between 2001 and 2005 according to Bureau of Justice Statistics, the Keystone Progress report said.

Philadelphia also ranks in the lower 30 percent of all major metropolitan areas in terms of damage amounts, the Keystone Progress report said.

Morrill said in an interview that Keystone Progress has started a new advocacy campaign regarding Pennsylvania’s courts because legal protections for the environment, consumers and women’s issues can only be protected if courts are fair.

The report on Philadelphia courts was the first part of the campaign, Morrill said.

Morrill also said that the funding for Keystone Progress’ new “Taking Back Our Courts” campaign is not funded by Pennsylvania trial lawyers, although trial lawyers did co-sponsor a Keystone Progress event a few months ago.

Amaris Elliott-Engel can be contacted at 215-557-2354 or [email protected]. Follow her on Twitter @AmarisTLI.

Fresh Ink: Inside Today's Legal

Welcome to your Monday morning round-up of stories in today’s edition of The Legal Intelligencer. All of the links below will take you directly to today’s stories, or you can head straight over to The Legal’s homepage. (Some stories may require registration or a paid subscription.)

Today’s top story is a judge siding with the Catholic Archdiocese of Philadelphia on the attorney-client privilege issue regarding 12 communications between outside counsel hired by the archdiocese and the former secretary of clergy charged with endangering the welfare of children allegedly abused by priests he supervised. As reporter Amaris Elliott-Engel writes, Philadelphia Common Pleas Court Judge M. Teresa Sarmina said during the last pretrial hearing before the trial opens today that she doesn’t see how defendant Monsignor William J. Lynn’s attorneys can establish that he sought counsel personally and separately from the interests of the archdiocese.

Also above the fold on Page 1, reporter Zack Needles writes that a federal judge has denied an oil and gas trade group’s petition to hold the U.S. Forest Service in contempt for allegedly delaying drilling projects.

Below the fold on Page 1, Zack Needles writes that a Philadelphia jury has awarded more than $3 million to a woman whose colon cancer went undiagnosed for nearly two years.

In more Regional News on Page 3, the 3rd U.S. Circuit Court of Appeals has ruled that admission into a pretrial intervention program bars defendants from bringing a federal civil rights suit over the underlying events of their arrest.

As always, our People in the News section is on Page 2, and the top stories from our sister publications across the country make up the Page 4 National News section.

On Page 5 today is the Public Interest Page, as Lawrence Szmulowicz writes that the courts are showing a reluctance to protect victims of stalking.

In a Health Care Law column on Page 7, Vasilios J. Kalogredis and Karilynn Bayus write about the 3rd Circuit’s recent opinion on a physician’s employment contract dispute.

If you have questions or comments about any of today's stories, or our coverage as a whole, we invite you to e-mail any of the reporters directly. We hope you'll enjoy today's Legal.

Phila. Court Collections Increase More Than 100 Percent

By Amaris Elliott-Engel
Of the Legal Staff

The First Judicial District’s collections of court fines and other costs have increased by more than 100 percent in the last five years, according to reports released by the state Supreme Court last week.

In 2007, court collections in Philadelphia were $10.9 million and in 2011, court collections were $22.4 million, according to court statistics.

Overall, in the state, the state judiciary reports that case filings have dropped 7 percent and total collections have increased 5 percent in the last five years.

The decline in court filings was due to a drop in the number of traffic citations issued, the Supreme Court said.

Court collections in 2011 totaled nearly $470 million in Pennsylvania, according to the Supreme Court. Forty-five percent of those collections go to the state, 35 percent to counties, 11 percent to municipalities, and 7.7 percent for crime-victim restitution, the court said.

An application allowing defendants to make payment online, “e-Pay,” appears to be contributing to higher court collection levels, Pennsylvania Chief Justice Ronald D. Castille said in a press release.

Court collections through e-Pay have risen to more than $130,000 per day, the court said.

Amaris Elliott-Engel can be contacted at 215-557-2354 or [email protected]. Follow her on Twitter @AmarisTLI.

Fresh Ink: Inside Today's Legal

Welcome to your Tuesday morning round-up of stories in today’s edition of The Legal Intelligencer, which also includes this week’s edition of Pennsylvania Law Weekly. All of the links below will take you directly to today’s stories, or you can head straight over to The Legal’s homepage. (Some stories may require registration or a paid subscription.)

Today’s top story, writes reporter Amaris Elliott-Engel, is drugmaker GlaxoSmithKline asking the judge overseeing the federal multidistrict litigation regarding the diabetes drug Avandia to limit the contingency fees of attorneys representing individual plaintiffs to 25 percent of client awards. GSK said that in litigation “where, as here, the attorneys did not perform a substantial portion of the work, but rather benefited from coordinated discovery and other work performed by the plaintiffs’ steering committee,” the court should limit such fees, according to court papers.

Below the fold on Page 1 today, reporter Gina Passarella writes about the modest class action settlement for a group of amusement park-goers who said Palace Entertainment and Festival Fun Parks violated the Fair and Accurate Credit Card Transactions Act by printing receipts that contained the consumers’ credit and debit card expiration dates. The preliminary approval for the class in Hanlon v. Palace Entertainment Holdings will give individuals in the class a single free ticket to the amusement park.

On Page 3 of today’s Legal, reporter Zack Needles writes that the state Supreme Court, in Bruesewitz v. Wyeth, has vacated a Superior Court ruling in the products liability case of an 11-year-old autistic boy. This comes less than a year after the U.S. Supreme Court ruled 6-2 in the case that the federal National Childhood Vaccine Injury Act pre-empts all vaccination design defect claims brought against vaccine makers in state court.

As always, our People in the News section is on Page 2, and the top stories from our sister publications across the country make up the Page 4 National News section.

Today’s Appellate Law column is on Page 5, as Howard J. Bashman writes about how to repair the record on appeal to ensure that it reflects the full truth in all cases. “Unfortunately, it is not unusual for the record on appeal to fail to accurately reflect what actually happened before the trial court,” writes Bashman.

On Page 7, Peter F. Vaira writes about Eastern District Practice, discussing methods for federal criminal discovery and a new book he has read that deals with the topic.

As it is Tuesday, it’s also your chance to read this week’s Pennsylvania Law Weekly. The lead story for PLW, written by Amaris Elliott-Engel, details the state Supreme Court’s rejection of a petition by Allegheny County to exercise its King’s Bench or extraordinary jurisdiction to determine if the county’s real property assessment system is constitutional.

On the bottom of Page 1, reporter Ben Present writes an allocatur story about the state Supreme Court granting the appeal of a convicted murderer who was denied the right to testify after the evidence phase of his trial had closed.

This week’s Page 3 story comes from Zack Needles, who writes that an Allegheny County trial judge has ruled that Pennsylvania law, rather than Texas law, should be used in deciding the sufficiency of evidence linking coal tar pitch volatiles to cancer in more than 60 products liability cases involving injuries that occurred in Texas.

There’s plenty more inside this week’s PLW, including Samuel C. Stretton’s weekly Ethics Forum, in which he tackles terminating relationships with uncooperative clients; Andrew D. Taylor’s Family Law commentary regarding Pennsylvania’s new Child Custody Act; a forgetful jury foreperson leading to an ineffective assistance claim; and a special needs trust allowing an auto-accident plaintiff to collect a settlement and keep her benefits.

If you have questions or comments about any of today's stories, or our coverage as a whole, we invite you to e-mail any of the reporters directly. We hope you'll enjoy today's Legal.